Citation Nr: 0210271
Decision Date: 08/22/02 Archive Date: 08/29/02
DOCKET NO. 98-13 748 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for cause of the veteran's
death.
REPRESENTATION
Appellant represented by: Sean A. Ravin, attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran served on active duty from May 1967 to August
1969.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an April 1998 rating decision of the
Montgomery, Alabama, Department of Veterans Affairs (VA)
Regional Office (RO), which denied the appellant's claim that
new and material evidence had been submitted to reopen a
claim of entitlement to service connection for cause of the
veteran's death. The appellant appealed, and in January
2000, the Board reopened the claim and denied it on the
merits.
Following the Board's January 2000 decision, the appellant
appealed to the U.S. Court of Appeals for Veterans Claims
(Court). In January 2001, the Court issued an Order vacating
and remanding the January 2000 Board decision.
In a written motion, received in August 2002, the veteran's
representative raised a claim of entitlement to compensation
for the cause of the veteran's death under 38 U.S.C.A. § 1151
(West 1991). The veteran's representative also raised the
issue of whether the RO's April 1998 decision, which denied a
claim of entitlement to dependents' educational assistance
(DEA) benefits, was timely appealed. These claims have not
been adjudicated by the agency of original jurisdiction, and
are referred to the RO for appropriate action.
REMAND
The Board notes that in its January 2001 Order, the Court
vacated and remanded the claim for consideration of certain
provisions contained within the recently enacted Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-4 75,
114 Stat. 2096 (2000).
The Board further notes that in a written motion, received in
August 2002 during the pendency of this appeal, the veteran's
representative requested a hearing at the RO. See also VA
Form 119, dated in August 2002. The Court has determined
that a claimant has a right to request a hearing before the
issuance of a Board decision. See Bernard v. Brown, 4 Vet.
App. 384, 393 (1993) (citing 38 U.S.C.A. § 7104(a) (West
1991)); 38 C.F.R. §§ 3.103(a) and (c), 19.9, 20.700 (2002).
The veteran died in September 1983, at the Dwight David
Eisenhower Army Medical Center (DDEAMC) at Ft. Gordon,
Georgia. The appellant's representative has argued that a
remand is required to obtain records from the (otherwise
unidentified) health care provider who performed the
veteran's appendectomy in 1976, as well as any microscopic
examination and toxicological reports from DDEAMC which were
created in association with the veteran's death.
Therefore, in order to fully and fairly adjudicate the
appellant's claim, this case is REMANDED to the RO for the
following action:
1. The RO should schedule the appellant
for a hearing at the Montgomery, Alabama,
VA RO in accordance with 38 C.F.R. §
20.700 (2002).
2. The RO should contact the appellant
and request that she identify the health
care provider who performed the veteran's
appendectomy in 1976. After securing any
necessary release, the RO should attempt
to obtain the medical records concerning
the veteran's care at the facility
identified by the appellant. All records
obtained should be associated with the
claims folder.
3. The RO should attempt to obtain any
microscopic examination reports, and
toxicological reports, created in
association with the veteran's death from
the Dwight David Eisenhower Army Medical
Center at Ft. Gordon, Georgia, or other
appropriate repository.
4. The RO should then review the
expanded record and determine whether
entitlement to service connection for the
cause of the veteran's death has been
established, specifically considering the
recent legislative changes as contained
in the Veterans Claims Assistance Act of
2000. The RO should ensure that its
efforts conform to all relevant
provisions of the Act. If the decision
remains adverse to the appellant, she and
her representative should be furnished a
supplemental statement of the case.
After affording a reasonable opportunity
to respond, the case should be returned
to the Board for further appellate
review.
When the above action has been completed, the case should be
returned to the Board for appellate review, if appropriate.
No action is required of the appellant unless and until she
receives further notice. The purpose of this remand is to
provide due process. The Board intimates no opinion, either
legal or factual, as to the ultimate determination warranted
in this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
C. W. SYMANSKI
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2002), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2002).